On
Appeal from Superior Court, Rutland Unit, Family Division
Nancy Corsones, J.
Robert
P. McClallen, Rutland, for Plaintiff-Appellee.
Karen
Cegalis, Pro Se, Burlington, Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
JJ.
REIBER, C.J.
¶
1. Mother appeals pro se from the trial court's denial of
her motion to modify parental rights and responsibilities for
son L.C. Although the court found that mother had shown a
real, substantial, and unanticipated change in circumstances,
it concluded that transferring custody to mother at this
juncture was not in L.C.'s best interests. Mother argues
that the court's findings do not support its conclusion,
particularly given its determination that father and
stepmother are not credible witnesses. As set forth below, we
conclude that the court acted within its discretion in
assessing L.C.'s best interests and we therefore affirm
its decision. We emphasize, however, that the trial court has
now set a clear benchmark for father and stepmother's
behavior, and any further attempts at alienation may well
affect the best-interest analysis and warrant a change in
custody. See Miller-Jenkins v. Miller-Jenkins, 2010
VT 98, ¶ 25, 189 Vt. 518, 12 A.3d 768 (mem.) ("One
parent's attempts to hamper the other's parent-child
relationship . . . typically demonstrates a lack of regard
for the child's best interests and suggests that a
transfer of custody may well be in the child's best
interests.").
¶
2. Mother also challenges the court's denial of her
request for attorney's fees. We agree with mother that
she is entitled to such fees given father's egregious and
ongoing effort to alienate her from L.C., which prompted the
action at issue here. We therefore reverse the court's
denial of mother's request for attorney's fees and
remand for additional proceedings on this issue.
¶
3. Finally, mother informed the Court during oral argument
that on March 10, 2017, father moved to suspend her
visitation with L.C. The trial court suspended mother's
visitation on March 10, 2017, and mother indicates that she
has had no parent-child contact since that date, including
during the week of April vacation that the trial court had
previously ordered. Given the history of this case, any
delays in the process of reestablishing mother's
relationship with the child are profoundly concerning. If the
trial court has not yet done so, we direct the court to hold
a hearing on resuming mother's parent-child contact
within fourteen days of the date of this decision and to
consider awarding additional contact to make up for the time
lost due to father's actions.
I.
Prior Rulings
¶
4. We recently recounted in detail the long and heartbreaking
history of this case. See Knutsen v. Cegalis, 2016
VT 2, 201 Vt. 138, 137 A.3d 734. We do not repeat that
history here. Essentially, since 2012, when L.C. was five
years old, father and stepmother have been "waging war
against mother and making allegations of abuse [against
mother and her then-boyfriend] that were not true."
Id. ¶ 19. Through their actions, father and
stepmother deprived mother of any contact with L.C. for many
years and "destroyed the child's formerly good
relationship with mother." Id. ¶¶ 19,
21. The court found father and stepmother solely responsible
for L.C.'s trauma and for his utter estrangement from
mother. Id. Simply put, father and stepmother have
"impeded reunification" with mother "every
step of the way."[1] Id. ¶ 25.
¶
5. Despite father and stepmother's egregious behavior,
the trial court has thus far declined to modify parental
rights and responsibilities for the child. In a February 2015
order, the court concluded that "it could not simply
order the child to live with mother, even though it was
'the right thing to do.' " Id. ¶
21. Instead, the court considered the statutory best-interest
factors, and found "the quality of the child's
present adjustment to his home, school, and community, and
the potential effect of any change" controlling.
Id. In its February 2015 ruling, the court
determined that transferring custody to mother-when the child
had not visited mother's new home, did not know her new
community, and would have to attend a new school-would cause
"a 'violent dislocation' cautioned against by
this Court in deciding modification of parental rights
cases." Id. Given L.C.'s then-existing
mental health needs, the court also suspended efforts to
reunify L.C. with mother, with certain conditions. Mother was
denied any parent-child contact, with the exception of
letters to be mailed directly to L.C.'s attorney. Father
was directed to "immediately obtain a child-trauma
therapist, and to refrain from interfering, or allowing
stepmother to interfere, with the child's therapy."
[2]
Id. ¶ 24. The court ordered that on or before
L.C.'s eleventh birthday in August 2016, L.C. must
recommence office visits with a therapist, with a goal toward
reunification with mother. Id.
¶
6. We upheld this decision on appeal, although we agreed that
"father and stepmother have traumatized the child and
completely alienated him from his mother." Id.
¶ 28. We acknowledged mother's justifiable
"frustration at father's and stepmother's
interference in the reunification process since at least 2013
and the distressing unfairness of being denied contact with
her child for more than three years based wholly upon false
accusations." Id. ¶ 34. Notwithstanding
our concerns, we concluded that the trial court had properly
focused its analysis on L.C.'s best interests, and we
affirmed its decision "not because the father and
stepmother are correct in their accusations, or to reward or
endorse the course of conduct in which they have engaged, but
because the trial court's judgment regarding the
best-interest criteria was factually based and legally
correct." Id. ¶ 33. We emphasized that
mother was "not without recourse should father and
stepmother continue to interfere with her attempts at
reunification or should they defy the trial court's
orders." Id. ¶ 34.
II.
Current Ruling
A.
Change in Circumstances
¶
7. It is apparent that during the pendency of the 2015
appeal, father and stepmother continued to wage war against
mother. In October 2015, mother filed the emergency motion to
modify at issue here. She argued that father continued to
deliberately and repeatedly undermine and defy the
court's orders. The trial court agreed. At a September
2016 hearing, the court concluded that father's serious
and blatant violations of its prior order constituted a real,
substantial, and unanticipated change of circumstances. As
the court explained, it had expressly prohibited the parties
from publishing L.C.'s medical records to any third
person, yet stepmother had provided L.C.'s private
medical information-a trauma therapy report-to the media,
which father had at least "tacitly condoned, " the
trial court said. Father's attorney also submitted this
same report as an exhibit to a motion to stay father's
deposition in a separate civil suit that mother had filed.
The court observed that father did not repudiate his
attorney's actions or attempt to rescind this filing.
¶
8. Father also violated the clear prohibition against
interfering with L.C's therapy. Father wrote several
letters to L.C.'s trauma therapist at the inception of
therapy, attempting to sway her opinion. He continued his
effort to have mother "prosecuted, " telling the
therapist that providing the trauma therapy report to
L.C.'s attorney "may finally result in a real
investigation taking place, rather than a court-ordered cover
up." Father also informed the therapist that
"people are currently ...